Exhibit 2.5
▇▇▇▇▇ TRUST
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement") dated as of this 17th day of
September, 1997, by and between The ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇▇▇▇▇ Charitable Trust,
with address at c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., P.C., ▇.▇. ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller") and Compost America Holding
Company, Inc., a New Jersey corporation, with principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is the beneficial and record owner of one hundred (100)
of the issued and outstanding shares of common stock, no par value (the "Stock")
of ▇. ▇. ▇▇▇▇▇ Construction Co., Inc., a New Jersey corporation (the
"Corporation"); and
WHEREAS, the Seller desires to sell and the Purchaser desires to purchase
the Stock upon the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE ONE
SALE AND PURCHASE OF STOCK
1.01 Sale and Purchase of the Stock. At the Closing (as hereafter
defined), the Seller shall sell, transfer, assign, convey
and deliver to the Purchaser the Stock, free and clear of Liens (as hereinafter
defined) and the Purchaser hereby agrees to purchase and acquire the Stock from
the Seller, for the Purchase Price (as hereinafter defined).
1.02 Purchase Price and Payment. The purchase price (the "Purchase Price")
to be paid by the Purchaser to the Seller for the Stock shall be paid by the
payment of the sum of Thirteen Million and 00/100 ($13,000,000.00) Dollars in
immediately available funds at the Closing by wire transfer to a bank account
which shall have been designated by the Seller in writing not less than seven
days prior to the Closing Date.
1.03 The Closing. Upon the terms and subject to the conditions contained
in this Agreement, the transfer of the Stock by the Seller to the Purchaser and
the payment by the Purchaser of the Purchase Price (the "Closing") shall take
place no later than September 30, 1997, at 10:00 a.m. at the offices of ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., One ▇▇▇▇▇▇ Plaza, Fort ▇▇▇, New Jersey, or at such
other date, time or place as the parties shall mutually agree in writing (the
"Closing Date"). No party hereto may declare time of the essence in connection
with the Closing except on prior written notice to the other party delivered at
least ten days before the requested Closing Date.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
2.01 Ownership of Stock; Title. The Seller is the owner of record and
beneficially of the Stock. The Stock is owned by the
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Seller free and clear of any claim, levy, charge, pledge, hypothecation, trust,
security interest, proxy, voting arrangement, conditional sale or title
retention contract, or other encumbrance or restriction of any kind, including
restrictions affecting voting rights, transferability or incidents of record or
beneficial ownership (each of the foregoing being hereinafter individually
referred to as a "Lien" and collectively, the "Liens"). The consummation of the
sale of the Stock hereunder will convey to the Purchaser good, valid and
marketable title to the Stock free and clear of all Liens. There are no voting
trusts, shareholder agreements, proxies or other agreements or understandings in
effect with respect to the voting or transfer of the Stock to which the Seller
is a party or is bound. Except for this Agreement, there are no outstanding
warrants, options, rights or agreements of any kind to acquire the Stock, or any
portion of the Stock, from the Seller and all of the Stock is duly authorized,
validly issued and fully paid and non-assessable.
2.02 Authority. The Seller has full power, legal right and authority to
execute and deliver this Agreement, to sell the Stock in accordance with the
terms and subject to the conditions of this Agreement, and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite action and no other proceedings on the part
of the Seller are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has
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been duly and validly executed and delivered by the Seller and, assuming this
Agreement has been duly authorized, executed and delivered by the Purchaser,
constitutes a valid and binding legal agreement of the Seller enforceable
against the Seller in accordance with its terms. To the best of the Seller's
knowledge: (i) except for the filing of any notice subsequent to the Closing
that may be required under applicable federal and/or state securities laws
(which, if required, shall be filed on a timely basis as may be so required),
no consent, approval or authorization of, or declaration to, or filing with,
any public body or governmental authority, domestic or foreign, is required
for the valid authorization, execution, delivery and performance by the
Seller of this Agreement or for the consummation by the Seller of the
transactions contemplated by this Agreement; provided however, that no
representation is made by the Seller with respect to any filing, permit,
authorization, consent or approval, required by reason of the legal or
regulatory status of the Purchaser or by reason of facts specifically
pertaining to the Purchaser. The execution, delivery and performance by the
Seller of this Agreement and the consummation of the transactions
contemplated hereby will not: (i) result in a breach of, or constitute a
default (with or without notice or lapse of time, or both) under, any
provision of (a) the trust instrument under which the Seller was formed; (b)
any debt instrument, indenture, mortgage agreement or other instrument or
arrangement to which the Seller is a party or by which it is bound; or
(c) any judgment, order or decree by which
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the Seller is bound or affected; or (ii) result in the imposition of any Lien
on the Stock.
2.03 No Brokers. The Seller has not employed any broker or finder, nor
incurred any liability for any investment banking fees, brokerage fees,
commissions or finder's fees in connection with the transactions contemplated by
this Agreement.
2.04 Disclosure. To the best of the Seller's knowledge, neither this
Agreement nor any other written document, certificate, instrument or written
statement furnished or made to the Purchaser by or on behalf of the Seller in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein not misleading.
2.05 Survival of Representations and Warranties. The representations of the
Seller contained in this Article II shall be complete, correct and true as of
the date hereof and as of the date of Closing. Purchaser has entered into this
Agreement based upon its own investigation, evaluations and forecasts and is not
relying upon any representation or inducement which was or may have been made or
implied by Seller or anyone acting on his behalf, except as expressly set forth
in this Agreement or in that certain Stock Purchase Agreement (the "Stock
Purchase Agreement") by and among the Purchaser, the Corporation and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, executed and delivered simultaneously herewith, a copy of which is
attached hereto as Schedule 2.05. None of the Article II representations and
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warranties shall survive the execution and delivery of this Agreement and the
Closing Date.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
3.01 Organization. The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey.
3.02 Authorization. The execution and delivery of this Agreement by the
Purchaser and the consummation of the transactions contemplated hereby, have
been duly and validly authorized by all requisite corporate action by the
Purchaser and no other proceedings on the part of the Purchaser are necessary to
authorize this Agreement or to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered by the Purchaser
and assuming this Agreement has been duly authorized, executed and delivered by
the Seller, constitutes a valid and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms. The execution,
delivery and performance by the Purchaser of this Agreement and the consummation
of the transactions contemplated hereby will not: result in a material breach
of, or constitute a default (with or without notice or lapse of time, or both)
under, any provision of (a) any debt instrument, indenture, mortgage agreement
or other instrument or arrangement to which the Purchaser is a party or by
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which it is bound; or (b) any judgment, order or decree by which the Purchaser
is bound or affected.
3.03 No Brokers. Except with respect to fees payable by the
Purchaser to ▇▇▇▇▇ ▇▇▇▇▇▇ Peppet Inc., neither the Purchaser nor any of its
officers, directors, employees or shareholders has employed any investment
banker, broker or finder or incurred any liability for any investment banking
fees, brokerage fees, commissions or finder's fees in connection with the
transactions contemplated by this Agreement.
3.04 Consents or Approvals; No Violations. To the best of the Purchaser's
knowledge: (i) except for the filing of any notice during the period subsequent
to the date of this Agreement but before the Closing Date, or from and after the
Closing Date, that may be required under applicable federal and/or state
securities laws (which, if required, shall be filed on a timely basis as may be
required), no consent, approval or authorization of, or declaration to, or
filing with, any public body or governmental authority, domestic or foreign, is
required for the valid authorization, execution, delivery and performance by the
Purchaser of this Agreement or for the consummation by the Purchaser of the
transactions contemplated by this Agreement; provided, however; that no
representation is made by the Purchaser with respect to any filing, permit,
authorization, consent or approval, required by reason of the legal or
regulatory status of the Seller or by reason of facts specifically pertaining to
it.
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3.05 Disclosure. Neither this Agreement nor any other written document,
certificate, instrument or written statement furnished or made to the Seller by
or on behalf of the Purchaser in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein not misleading. The Purchaser hereby represents and warrants that it has
consulted with its legal counsel and has determined that upon the execution of
this Agreement by all parties hereto, it is required to disclose to the public,
the Securities and Exchange Commission and any applicable state securities
regulatory authority, as part of its ongoing disclosure obligations as a public
company, the fact that the Purchaser has entered into this Agreement. Consistent
with that obligation, the Purchaser has drafted a press release, attached hereto
as Schedule 3.05, which meets the requirements of such disclosure obligation and
hereby represents and warrants that it will not disseminate such press release
to the public until the Seller has reviewed and approved it; provided, however,
that such review and approval will not unreasonably delay the dissemination of
such press release nor will it cause the Purchaser to violate its disclosure
obligation as a public company.
3.06 Acquisition for Investment. The Purchaser is acquiring the Stock for
its own account for investment and not with a view to the distribution thereof
so as to cause a violation of the Securities Act of 1933, as amended (the
"Act"), or any rules or
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regulations promulgated thereunder, and agrees that it will not sell, transfer,
distribute or otherwise dispose of any such Stock except pursuant to an
effective registration statement under the Act or under an exemption from the
registration requirements of the Act. The Purchaser understands and
acknowledges that the Stock has not been registered under the Act.
3.07 Insolvency. The Purchaser represents and warrants that: (i) it is not
now insolvent and the execution and delivery by the Purchaser of this Agreement
and the performance by it of any of the actions required by this Agreement will
not render the Purchaser insolvent; (ii) the execution and delivery by the
Purchaser of this Agreement and the performance by it of any of the actions
required by this Agreement will not result in the property remaining in its
hands to be unreasonably small capital; and (iii) the execution and delivery by
the Purchaser of this Agreement and the performance by it of any of the actions
required by this Agreement will not result in the Purchaser incurring any debts
beyond its ability to pay. For purposes of this Section 3.07 "insolvent" shall
mean insolvent within the meaning of any state or federal law relating to
bankruptcy, insolvency, reorganization or relief of debtors.
3.08 Litigation. The Purchaser represents and warrants that there are no
actions, suits, arbitration proceedings or claims (whether or not purportedly on
behalf of the Purchaser) pending, or to the knowledge of the Purchaser,
threatened against or affecting the Purchaser or any of its properties, or
maintained by the Purchaser, at law or in equity which if adversely determined
(i)
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would impair the right or ability of the Purchaser to carry on its business
substantially as now conducted; or (ii) would have a material adverse effect on
the financial condition, operations, business or properties of the Purchaser,
except as disclosed by the Purchaser on its most recent Form 10K filed with the
Securities nd Exchange Commission. There are no proceedings pending, or to the
knowledge of the Purchaser, threatened, which call into question the validity
or the enforceability of this Agreement or the Stock Purchase Agreement. There
is no action currently pending, anticipated or threatened pursuant to which the
Purchaser has filed or will file a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction nor has it petitioned or applied to nor does it
intend to petition or apply to, any tribunal for the appointment of any
receiver, liquidator, assignee, custodian, sequestrator or any trustee for any
substantial part of its property.
3.09 Fraudulent Transfer. The execution and delivery by the Purchaser of
this Agreement and the performance by the Purchaser of the transactions
contemplated herein, will not result in a fraudulent transfer of the Purchaser's
assets.
3.10 Survival of Representations and Warranties. The representations and
warranties of the Purchaser contained in this Article III shall be complete,
correct and true as of the date hereof and/or the date of the Closing. The
Seller has entered into
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this Agreement based upon its own investigation, evaluations and forecasts and
is not relying upon any representation or inducement which was or may have been
made or implied by the Purchaser or anyone acting on its behalf, except as
expressly set forth in this Agreement. The representations and warranties of the
Purchaser shall survive the execution and delivery of this Agreement and the
Closing Date; provided however, that any claim by the Seller with respect to any
breach of any such representation must be asserted on or before the first
anniversary of the Closing Date or shall be deemed waived.
ARTICLE FOUR
COVENANTS OF THE PARTIES
4.01 Exclusivity. From the date hereof until September 30, 1997 or the
earlier termination of this Agreement (the "Standstill Period"), the Seller will
not solicit or negotiate in any way any offer from any other person or entity to
purchase all or any part of the Stock. During the Standstill Period, the Seller
will deal exclusively with the Purchaser with respect to the sale of the Stock
and shall not enter into any written or oral agreement or understanding with
respect to acquisition of the Stock.
4.02 Confidentiality. Except as required by law or as the parties otherwise
agree in writing, including, without limitation, the provisions of paragraph
3.05 of this Agreement, this Agreement will be kept strictly confidential, and
neither the Purchaser nor the Seller nor any person on behalf of the Purchaser
or the Seller
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shall disclose either the Purchaser's or the Seller's interest in this
Agreement, or any of the terms and conditions thereof.
4.03 Reasonable Best Efforts. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use reasonable best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable to fulfill the conditions to the parties'
obligations hereunder and to consummate and make effective the transactions
contemplated by this Agreement, including, without limitation, making all
required filings and applications and complying with or responding to any
requests by governmental agencies and obtaining all consents, approvals, orders,
waivers, licenses, permits and authorizations required in connection with the
transactions contemplated hereby. If at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this
Agreement, the parties hereto shall take or cause to be taken all such necessary
action, including, without limitation, the execution and delivery of such
further instruments and documents as may be reasonably requested by the other
party for such purposes or otherwise to consummate and make effective the
transactions contemplated hereby.
4.04 Public Announcements. The Seller and the Purchaser will consult with
each other before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement, and
shall not issue any such press release or make any such public statement without
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the prior approval of the Purchaser or Seller, as the case may be, except as may
be required by law.
4.05 Breaches. If either party is aware prior to Closing, that the other
party has breached any provisions of this Agreement, the non-breaching party
shall give prompt written notice of such breach and an opportunity to cure such
breach to the breaching party, or such breach shall be deemed waived. If any
party is aware of a breach by any other party prior to the Closing, but
nevertheless proceeds to Closing, such breach is deemed waived.
ARTICLE FIVE
CONDITIONS TO CLOSING
5.01 Conditions to the Seller's Obligations. The obligation of the Seller
to consummate the transactions contemplated hereby at the Closing is subject to
satisfaction or waiver by the Seller of the following conditions on or before
the Closing Date:
(a) the representations and warranties of the Purchaser contained
herein shall be true and correct in all material respects as of the date of this
Agreement and at and as of the Closing Date as though such representations and
warranties were made at and as of the date of this Agreement;
(b) the Purchaser shall have entered into the Stock Purchase Agreement
pursuant to which the Purchaser shall have agreed to acquire all of the issued
and outstanding common stock of the Corporation owned by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, on the
terms and conditions contained in the Stock Purchase Agreement, and the closing
of such transaction shall take place simultaneously with
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the Closing under this Agreement, it being the intention of the parties hereto
that the Purchaser shall acquire all of the issued and outstanding common stock
of the Corporation; provided, however, that the Seller shall have no obligation
in any manner to arrange for, facilitate or cause the closing of the
transactions under the Stock Purchase Agreement nor shall it have liability with
respect to any of ▇▇▇▇▇'▇ or the Corporation's obligations in respect thereto;
(c) the Purchaser shall have performed and complied in all material
respects with all agreements, obligations, covenants and conditions required by
this Agreement to be performed or complied with by it on or prior to the
Closing;
(d) the Seller shall have received a duly executed certificate of an
authorized officer of the Purchaser to the effect that the conditions in
paragraphs (a) and (c) have been satisfied;
(e) the Purchaser shall have delivered to the Seller an opinion of
Greenberg, Traurig, et. al., counsel to the Purchaser, substantially in the form
of Schedule 5.01(e) hereto;
(f) all corporate actions, proceedings, instruments and documents of
the Purchaser required to carry out the transactions contemplated by this
Agreement or incidental thereto and all other related legal matters shall be
reasonably satisfactory to counsel for the Seller, and such counsel shall have
been furnished with such certified copies of such corporate actions and
proceedings and such other instruments, documents and opinions as it shall have
reasonably requested;
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(g) the Stock Purchase Agreement shall have been executed and
delivered by the parties thereto, shall be in full force and effect, and no
material defaults shall exist thereunder on the part of any party thereto; and
(h) the Purchaser shall have tendered to the Seller the Purchase
Price.
5.02 Deliveries by the Seller. At the Closing, the Seller will deliver
the following to the Purchaser:
(a) One or more certificates representing the Stock, accompanied by
stock powers duly endorsed in blank or accompanied by duly executed instruments
of transfer, and any other documents that are necessary to transfer to the
Purchaser good title to all the Stock free and clear of all Liens;
(b) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel to the Seller,
substantially in the form attached hereto as Schedule 5.02(b); and
(c) All other documents, instruments and writings required to be
delivered by the Seller at/or prior to the Closing Date pursuant to this
Agreement.
5.03 Conditions to the Purchaser's Obligations. The obligations of
the Purchaser to consummate the transactions contemplated hereby at the Closing
is subject to the satisfaction or waiver by the Purchaser of the following
conditions on or before the Closing Date:
(a) the representations and warranties of the Seller contained herein
shall be true and correct in all material respects
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as of the date of this Agreement and at and as of the Closing Date as though
such representations and warranties were made at and as of the date of this
Agreement;
(b) the Purchaser shall have entered into the Stock Purchase Agreement
and the closing of the Purchaser's acquisition of all of the issued and
outstanding common stock of the Corporation owned by ▇▇▇▇▇ shall take place
simultaneously with the Closing under this Agreement;
(c) the Seller shall have performed and complied in all material
respects with all agreements, obligations, covenants and conditions required by
this Agreement to be performed or complied with by him on or prior to the
Closing;
(d) the Purchaser shall have received a duly executed certificate
from the Seller to the effect that the conditions in paragraphs (a) and (c) have
been satisfied;
(e) the Seller shall have delivered to the Purchaser an opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel to the Seller, substantially in the form of
Schedule 5.02 (b) hereto;
(f) the Seller shall have delivered to the Purchaser certificates
representing all of the Stock, accompanied by stock powers duly endorsed in
blank or accompanied by duly executed instruments of transfer, in each case,
endorsed or executed by the Seller; and
(g) all actions, proceedings, instruments and documents of the Seller
required to carry out the transactions contemplated by this Agreement or
incidental thereto, and all other related
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legal matters shall be reasonably satisfactory to counsel for the Purchaser, and
such counsel shall have been furnished with such certified copies of such
actions and proceedings and such other instruments, documents and opinions as it
shall have reasonably requested.
5.04 Deliveries by the Purchaser. At the Closing, the Purchaser will
deliver the following to the Seller:
(a) The Purchase Price;
(b) Certified copies of the resolutions, duly adopted by the Board of
Directors of the Purchaser, authorizing the execution, delivery and performance
of this Agreement;
(c) An opinion of Greenberg, Traurig, et. al., counsel to the
Purchaser, substantially in the form attached hereto as Schedule 5.01(e); and
(d) All other documents, instruments and writings required to be
delivered by the Purchaser at or prior to the Closing Date pursuant to this
Agreement.
ARTICLE SIX
TERMINATION AND ABANDONMENT
6.01 Termination. This Agreement may be terminated at any time prior to the
Closing by the mutual written consent of each of the Purchaser and the Seller.
6.02 Effect of Termination. In the event of termination of this Agreement
and abandonment of the transactions contemplated hereby by the parties hereto
pursuant to Section 6.01 hereto, this Agreement shall forthwith become null and
void and of no further
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effect, without any liability on the part of any party or its directors,
officers, partners, Affiliates, employees, agents or security holders, other
than as provided in Article VII hereof, and the obligation of the parties hereto
to return to the other parties any documents received in connection with the
transactions contemplated herein. No party to this Agreement shall make any
claim for damages against the other with respect to this Agreement and the
parties hereto acknowledge and agree that their right to damages, if any, shall
be limited to those damages expressly provided for in the Stock Purchase
Agreement.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
7.01 Amendment and Modification. This Agreement may be amended or
modified at any time by the parties hereto, pursuant to an instrument in writing
signed by the Purchaser and the Seller.
7.02 Extension; Waiver. At any time prior to the Closing Date, the party
entitled to the benefit of any respective term or provision hereof may (a)
extend the time for the performance of any of the obligations or other acts of
the other party hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document, certificate or writing delivered
pursuant hereto, or (c) waive compliance with any obligation, covenant,
agreement or condition contained herein. Any agreement on the part of a party
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed
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by the party entitled to the benefits of such extended or waived term or
provision.
7.03 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof and (b) shall not be assigned, by operation of law or otherwise by a
party hereto, without the prior written consent of the other party.
7.04 Validity. The invalidity or unenforceability of any term or
provision of this Agreement in any situation or jurisdiction shall not effect
the validity or enforceability of the other terms or provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
7.05 Expenses. Whether or not this Agreement and the transactions
contemplated hereby are consummated, and except as otherwise expressly set forth
herein, all costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
7.06 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
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7.07 Successors, Assigns, etc. This Agreement is binding upon the parties
and their heirs, personal representatives, successors and assigns, as the case
may be.
7.08 Governing Law; Jurisdiction. This Agreement shall be construed in
accordance with and governed by the laws of the State of New Jersey without
regard to principles of conflict of laws. The parties agree that any disputes
and matters arising from this agreement shall be brought before the Superior
Court of New Jersey or, if federal jurisdiction exists, before the United States
Court for the District of New Jersey, and each party agrees to submit to the
jurisdiction of said courts, and to waive any defenses based upon grounds of
lack of jurisdiction, improper venue or convenience.
7.09 Severability. If any part of this Agreement is declared to be
invalid or unenforceable, then such invalidity or unenforceability shall not
affect the remainder of this Agreement which shall continue in full force and
effect.
7.10 Notices. Unless otherwise provided herein, all notices, demands,
requests, consents or other communications required or permitted to be given or
made under this Agreement shall be made in writing and signed by the party
giving the same and shall be deemed to have been given or made when hand
delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, to the following addresses or to any other addresses of which
all parties are notified in writing:
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If to the Seller:
The ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇▇▇▇▇ Charitable Trust
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to the Purchaser:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, President
Compost America Holding Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
7.11 Headings. The subject headings of the sections and subsections of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
7.12 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and its Affiliates and nothing in
this Agreement, express or implied, is intended by or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
7.13 No Waivers. Except as otherwise expressly provided herein, no
failure to exercise, delay in exercising, or single or partial exercise of any
right, power or remedy by any party, and no
21
course of dealing between the parties, shall constitute a waiver of any such
right, power or remedy.
7.14 Mutual Releases. The Purchaser and the Seller shall have executed and
delivered to each other, general releases, substantially in the form of Schedule
8.15 hereto, for contractual claims occurring prior to the Closing Date, in
favor of each other and their respective past or present employees, officers,
trustees, shareholders, and Affiliates, except for obligations arising under
this Agreement.
7.15. Independent Counsel. The parties hereto have each been represented
by and consulted with their own respective independent counsel and have resolved
with such counsel any questions they may have had as to the meaning, effect or
interpretation of this Agreement and the Schedules thereto. The decision of the
parties to enter into this Agreement is a fully informed decision, and the
parties are aware of all legal and other ramifications of such decision.
7.16 Construction. In all events, relative words in the singular shall
include the plural and the masculine gender shall include the feminine and
neuter (and vice versa) whenever the context so requires. The parties hereto
agree that the terms and language of this Agreement were the result of
negotiations between the parties and, as a result, there shall be no presumption
that any ambiguities in this Agreement shall be resolved against either party.
Any controversy over the construction of this Agreement
22
shall be decided neutrally, in light of its purposes, and without regard to
events of authorship or negotiation.
7.17 Further Assurances. The parties hereto agree to execute and deliver
such further instruments and to perform any acts that may be necessary or
reasonably requested in order to give full effect to this Agreement. Each party,
in order to carry out this Agreement, shall use all reasonable efforts to
provide such information, execute such further instruments and documents and
take such actions as may be reasonably requested by the other and not
inconsistent with the provisions of this Agreement and not involving the
assumption of obligations or liabilities different from or in excess or in
addition to those expressly provided for herein.
7.18 Waiver of Trial by Jury. The Purchaser and the Seller in any
litigation (whether or not arising out of or relating to this Agreement or any
other obligation owed by them) in which the Purchaser or the Seller shall be
adverse parties, hereby voluntarily, knowingly and irrevocably waive any
constitutional or other right each may have to a trial by jury.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date and year first above written.
WITNESS: The ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇▇▇▇▇
Charitable Trust
________________________ By:__________________________
, Trustee
ATTEST: Compost America Holding Company, Inc.
_______________________ By:_______________________
23
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
24
November 3, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
We have acted as special counsel to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Seller") and ▇.▇.
▇▇▇▇▇ Construction Co., Inc. (the "Corporation") in connection with the
preparation, authorization, execution and delivery of, and the consummation of
the transactions contemplated by the Stock Purchase Agreement (the "Stock
Purchase Agreement") dated September 17, 1997, by and among the Seller, the
Corporation and Compost America Holding Company, Inc. (the "Purchaser") as the
same has been amended by three subsequent amendments thereto. The Seller is the
owner of fifty (50%) percent of the stock of the Corporation. The remaining
fifty (50%) percent of the stock of the Corporation is owned by The ▇▇▇▇▇▇ ▇.
and ▇▇▇▇▇▇ ▇▇▇▇▇ Charitable Trust (the "Trust"). Terms defined in the Stock
Purchase Agreement and not otherwise defined herein are used herein with the
meanings so defined in the Stock Purchase Agreement.
In so acting, we have examined originals or copies certified or otherwise
identified to our satisfaction, of the Stock Purchase Agreement and the Exhibits
thereto (such documents being collectively referred to herein as the "Seller's
Documents") and such records, corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of the Seller and
officers and representatives of the Corporation and have made such inquiries of
the Seller and such officers and representatives of the Corporation as we deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. As to
all questions of fact material to this opinion that have not been independently
established, we have relied upon certificates or
Compost America Holding Company, Inc.
November 3, 1997
Page 2
comparable documents of Seller or officers and representatives of the
Corporation and upon the representations and warranties of the Seller and the
Corporation contained in the Stock Purchase Agreement.
Based on the foregoing, and subject to the qualifications stated herein, we
are of the opinion that:
1. The Seller is an individual who resides in the State of New Jersey.
2. The Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey.
3. The Seller has the requisite power and authority to execute and
deliver the Seller's Documents to which he is a party and to perform his
respective obligations thereunder. The Seller's Documents to which the Seller
is a party have been duly and validly executed and delivered by the Seller and
(assuming the due authorization, execution and delivery thereof by Purchaser)
constitute the valid and binding obligation of the Seller enforceable against
the Seller in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and subject to the
qualification that we express no opinion with respect to those provisions of the
employment agreement of the Seller regarding specific performance thereof
(Section 15) and the restrictive covenant provisions (Sections 13, 14 and 15)
contained therein.
4. The Corporation has the requisite corporate power and authority to
execute and deliver the Seller's Documents to which it is a party and to perform
its respective obligations thereunder. The execution, delivery and performance
by the Corporation of the Seller's Documents to which it is a party and the
consummation by the Corporation of the transactions contemplated thereby have
been duly authorized by the necessary corporate action on the part of the
Corporation. The Seller's Documents to which the Corporation is a party have
been duly and validly executed and delivered by the Corporation and (assuming
the due authorization, execution and delivery thereof by Purchaser) constitute
the valid and binding obligation of the Corporation, enforceable against the
Corporation in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and
Compost America Holding Company, Inc.
November 3, 1997
Page 3
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
5. The execution and delivery of the Seller's Documents, the consummation
of the transactions contemplated thereby and compliance by the Seller and the
Corporation with any of the material provisions thereof will not materially
conflict with, constitute a material default under or materially violate (i) any
of the terms, conditions or provisions of the certificate of incorporation or
bylaws of the Corporation; (ii) to the best of our knowledge based upon the
matters disclosed in the representations and warranties of the Seller and the
Corporation contained in the Stock Purchase Agreement, any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on the Seller or the Corporation; and (iii) to the best of our knowledge
(except as otherwise disclosed in the Stock Purchase Agreement), any of the
agreements which are described in Schedule 4.01 of that certain Stock Purchase
Agreement between the Purchaser and Wasteco Ventures Limited ("Wasteco"), dated
as of November 3, 1997 (the "Wasteco Agreement"), other than the New York
Contract as to which we express no opinion.
6. To the best of our knowledge after inquiry of the Seller, but without
any independent investigation, no consent, approval, waiver, license or
authorization or other action by or filing with any New Jersey or federal
governmental authority is required in connection with the execution and delivery
by the Seller and the Corporation of the Seller's Documents or the consummation
by the Seller and the Corporation of the transactions contemplated thereby,
except for federal and state securities or blue sky laws, as to which we express
no opinion. We express no opinion with respect to the sale by the Trust of its
stock in the Corporation. We express no opinion regarding the due authorization
of any securities issued in connection with the Stock Purchase Agreement, the
marketability of any such securities or the Purchaser's compliance with
applicable securities laws in connection therewith. We express no opinion and
assume no responsibility with respect to any financial statements or other
financial data regarding the Seller or the Corporation which has been delivered
by or on behalf of the Seller or the Corporation. We have not conducted an
audit or investigation of the representations or warranties of Seller or
Corporation as set forth in the Seller's Documents, the assets, liabilities,
operation or affairs of the Seller or the Corporation and we do not render any
opinion in connection therewith; however, in the course of our representation of
the Seller and the Corporation nothing has come to our actual knowledge that has
caused us to determine that any of the representations or warranties of the
Seller or the Corporation are untrue. This
Compost America Holding Company, Inc.
November 3, 1997
Page 4
opinion is limited to matters expressly stated herein and no opinion is implied
or may be inferred beyond the matters expressly stated herein. We express no
opinion as to circumstances which may occur subsequent to the date hereof.
The opinions herein are limited to and based upon the laws of the State of
New Jersey and the federal laws of the United States as of the date hereof and
are subject to any amendment, repeal or other modification of the applicable
laws that serve as the basis of our opinion, or laws or judicial decisions
hereinafter enacted or rendered. Our engagement with respect to this opinion
does not require and shall not be construed to require or constitute a
continuing obligation on our part to notify or inform the addressee hereof or
any other party of the amendment, repeal or other modification of the applicable
laws or judicial decisions that served as the basis for our opinion or laws or
judicial decisions hereinafter enacted or rendered which impact on our opinion.
We have not examined and we do not express any opinion as to the laws of any
other jurisdiction, whether applicable directly or through New Jersey law.
This opinion is rendered solely for your benefit in connection with the
transactions described above. This opinion may not be used or relied upon by
any other person and may not be disclosed, quoted, filed with a governmental
agency or otherwise referred to without our prior written consent, except that
this opinion may be disclosed to and relied upon by Wasteco solely in connection
with the closing of the Wasteco Agreement.
Very truly yours,
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
